If you’re an Internet Service Provider (ISP) or other non-carrier entity who wishes to supply carriage services through your network unit without becoming a carrier, you must obtain a Nominated Carrier Declaration (NCD).
What is a Nominated Carrier Declaration?
Under Division 4 of the Telecommunications Act 1997 (Cth), an NCD permits the owner(s) of one or more network units to nominate a carrier to supply carriage services over those units to the public, subject to the carrier satisfying the ACMA that it would be in a position to comply with carrier-related obligations in respect of those network units. The ACMA may only declare one carrier to be the nominated carrier in relation to specific network units.
What is a network unit?
The Act defines four types of network units:
- a) A single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements (at least 500 metres apart);
- b) Multiple line links connecting distinct places in Australia, where the line link meets certain minimum distance requirements (aggregate distance is at least 5 kilometres);
- c) a designated radio-communications facility;
- d) a facility specified in a Ministerial determination.
A more practical definition of network unit is a telecommunications cable or a radio-communications base station.
Why can’t I just use the network unit?
Section 42 of the Act provides that a network unit is not to be used to supply a carriage service to the public without carrier licence or NCD. Contravention of Section 42 will result in a fine of up to 20,000 penalty units.
How do I obtain a Nominated Carrier Declaration?
Division 4 of Part 3 of the Act provides administrative arrangements for the granting of NCDs. A carrier may apply to the ACMA for an NCD. The application must be in writing and in accordance with an application form approved by the ACMA (See T034 – Application for a nominated carrier declaration). It must be accompanied by:
- an application charge to the amount $2,320.00;
- the consent of the owner or each of the owners of the network units;
- the election of the applicant accepting responsibility for the units; and
- a description of the network units subject to the application.
The ACMA may make an NCD if it is satisfied that:
- the applicant would be in a position to comply with all of the obligations imposed on the applicant in its capacity as the nominated carrier in relation to the network units; and
- the making of the declaration would not impede the efficient administration of the Act (section 81).
Applicants are required to attach a submission to the application detailing matters that would assist the ACMA to form a view regarding the issues outlined above. For example, the submission should provide details of any arrangements between the owner(s) of the network units and the nominated carrier which provide that the nominated carrier will not be precluded from meeting its carrier-related obligations in relation to the network units concerned.
Applicants are required to provide information in the form set out in the application specifying the network unit(s) and owner(s) of those units to which the nominated carrier has accepted responsibility. Information is also sought regarding the nature of the proposed services to be supplied using the network unit(s).
The ACMA may request further information about the application and can refuse to consider the application until this information is provided.
If the ACMA refuses to make an NCD, it will give written notice of the refusal to the applicant and the owner(s) of the network units.
Does an NCD last forever?
The ACMA can revoke an NCD. It must do so in any of the following circumstances:
- the owner or any of the owners of the network units gives the ACMA a written notice stating that the owner does not consent to the continued operation of the declaration; or
- the nominated carrier gives the ACMA a written notice stating that it does not accept responsibility for the units.
The ACMA may revoke an NCD if the ACMA is satisfied that, if it were assumed that the nominated carrier were to apply for the declaration, the ACMA would refuse to make the declaration.
Before making a revocation, the ACMA will give the nominated carrier a written notice setting out the proposal to revoke the declaration and inviting the nominated carrier to make a submission on the proposal. The ACMA will consider any submission provided by the nominated carrier within a period specified in the notice, being at least 7 days.
Where the ACMA decides to revoke a declaration, it will give a copy of the revocation to the former nominated carrier and the owner or each of the owners of the network units concerned.
The ACMA maintains an electronic register of all carrier licences and NCDs currently in force and the conditions of such licences and can be found here: ACMA Register
For further information, contact our expert Telco team who can assist with any aspect of NCDs via property and legal.com.au